Bradshaw v Legal Aid Queensland [2007] QSC 72

SUPREME COURT OF QUEENSLAND CITATION: Bradshaw v Legal Aid Queensland [2007] QSC 72 PARTIES: JAMES TODD BRADSHAW Applicant v LEGAL AID QUEENSLAND Respondent FILE NO/S: 348/06 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 29 March 2007 DELIVERED AT: Brisbane HEARING DATE: 22 March 2007 JUDGE: White J ORDER: Dismiss the application CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – GENERALLY – where applicant seeks judicial review of a discretion exercised by Legal Aid Queensland – where Legal Aid Queensland has refused to pay fees – where the applicant’s client has not submitted an application for legal aid to Legal Aid Queensland. LEGAL AID – LEGAL ASSISTANCE SCHEMES – QUEENSLAND – where no application for legal aid has been made to Legal Aid Queensland – where legislation mandates procedure to be met for legal aid to be granted – where procedure not followed Legal Aid Queensland Act 1997 (Qld), ss 3, 10, 46(4) Judicial Review Act 1991 (Qld), s 26 COUNSEL: Mr JT Bradshaw on his own behalf Mr D O’Gorman for the respondent SOLICITORS: Mr JT Bradshaw on his own behalf Robin Wilkinson Solicitor Legal Aid Queensland -- 1 of 5 -- 2 [1] The applicant, Mr James Bradshaw, is a barrister who seeks judicial review of a decision by the respondent not to pay him fees for work which he carried out for Mr Sam McDonald in the Court of Appeal. Mr Bradshaw has argued the application himself. [2] The material reveals that on 16 June 2003 Mr McDonald pleaded guilty to unlawful wounding in the District Court at Cairns. He had been in receipt of legal aid from the respondent for the committal and before the District Court where he was represented by counsel (not Mr Bradshaw) instructed by solicitors. Mr McDonald pleaded guilty and was sentenced to three years imprisonment suspended after 18 months with time in pre-sentence custody declared as time served and imprisoned at the Lotus Glen Correctional Centre. [3] Mr McDonald was desirous of instituting an appeal against his sentence despite apparently receiving advice from his lawyers at the time that he would not be successful. Mr McDonald then conveyed his wish to the prison duty Legal Aid solicitor on her visit to Lotus Glen but by then more than the 28 days for filing an application for leave to appeal had elapsed. The duty solicitor allegedly told Mr McDonald that he should apply to the Court of Appeal for an extension of time and if granted could then apply for legal aid for the application for leave to appeal against sentence. [4] Mr Bradshaw was approached by Mr McDonald’s family about an appeal and as a consequence he visited Mr McDonald at Lotus Glen. Mr Bradshaw deposes that he understood that Mr McDonald would make an application for legal aid but he did not do so. Mr Bradshaw further deposes that the matter had become urgent because the sentence was not lengthy and the time for lodging an application for leave to appeal had expired. [5] Mr Bradshaw prepared and filed the necessary documents for Mr McDonald and appeared in the Court of Appeal in Brisbane on 13 October 2003 to argue the application. The application was successful, the Court of Appeal concluding that the sentencing discretion had miscarried because there was a failure to recognise in a tangible way the plea of guilty and other matters favourable to Mr McDonald. The Court of Appeal accordingly granted the extension of time and the application for leave to appeal against sentence and allowed the appeal by varying the sentence to one of three years imprisonment suspended after serving 12 months, R v McDonald [2003] QCA 439. [6] Mr Bradshaw wrote on 16 October 2003 to Ms Desley Boyle MP relating generally to payment of his fees by the respondent when he acted for a defendant/appellant, as I understand his letter, without a prior grant of legal aid. Mr Bradshaw described as “bureaucratic nonsense” the need for prior authorisation, at least in cases like that of Mr McDonald. [7] Mr Bradshaw wrote to the respondent’s office in Cairns on 9 December 2003 and mentioned that office’s approach to briefing in Cairns. He wrote “I suggested to [counsel who appeared on Mr McDonald’s plea] that he might pay me the $484 for the plea, but he declined. In the circumstances I suggest you pay me Counsel and Solicitor’s fees for the work in the Court of Appeal.” -- 2 of 5 -- 3 [8] A senior solicitor at the respondent’s Cairns office responded, relevantly, “… At no time did Mr McDonald make an application for legal aid for his appeal; Your suggestion that Legal Aid Queensland pay you Counsel and Solicitor’s fees for the work in the Court of Appeal is rejected. Mr McDonald at no time requested the assistance of Legal Aid Queensland for representation at an appeal …” [9] By letter dated 14 November 2005 Mr Bradshaw sought a statement of reasons from the respondent. He wrote “Also would you please provide me with reasons as to why you will not pay me for the Sam McDonald appeal where I succeeded but paid the trial lawyers who did not have the ability to properly assess the error? I require this pursuant to the Judicial Review Act.” [10] The respondent received that letter on 23 November 2005 and under cover of letter dated 19 December 2005 provided Mr Bradshaw with a statement of reasons. The statement of reasons sets out the above chronology so far as was known to the respondent and in paragraph 9 the writer states that at no time did Mr McDonald apply for legal aid for an appeal. The writer stated that the decision not to make payment to Mr Bradshaw for his appearance on behalf of Mr McDonald in the Court of Appeal was based upon the provisions of the Legal Aid Queensland Act 1997 which requires in s 10, that an application for legal assistance be made in the approved form. [11] The writer set out the provisions in the respondent’s Policy Manual for dealing with urgent and retrospective grants of aid and the briefing of and payment to counsel in such circumstances “Requests for urgent grants of aid are considered only when it is not possible to either fax, electronically lodge or hand deliver the application and supporting material to Legal Aid Queensland. If an urgent grant of aid is required, the private practitioner must telephone their designated grants officer. Before urgent aid is grant Legal Aid Queensland must be satisfied of the merits of the case and of the urgency of the matter. If urgent aid is approved, an interim certificate is completed. This is sent to the private practitioner but lapses within 14 days unless a formal application for legal aid is received by Legal Aid Queensland. The interim grant of aid is conditional upon receiving the appropriate application form, confirming the applicant’s financial eligibility … Legal aid is not provided retrospectively unless there are exceptional circumstances which led to the failure to apply for legal aid and it will cause an applicant substantial financial hardship if retrospective aid is not granted … -- 3 of 5 -- 4 Briefing of counsel by a practitioner can only be done with the prior approval of Legal Aid Queensland.” [12] In conclusion the writer stated that the decision to refuse Mr Bradshaw’s request for payment was made because no application had ever been submitted by Mr McDonald for legal aid for an appeal to the Queensland Court of Appeal and Mr McDonald or his family had retained Mr Bradshaw directly to undertake an appeal on his behalf. Payment for those services was therefore a matter between Mr Bradshaw, Mr McDonald and his family. [13] By a letter dated 16 May 2006 Mr Bradshaw expressed concern that he had not been paid in respect of an account which had been sent to the respondent’s Cairns office which presumably related to Mr McDonald’s matter. By letter dated 26 July 2006 Mr Bradshaw informed the respondent that he proposed to institute proceedings for judicial review “to examine and analyse your discretion in the matter of Sam McDonald”. Mr Bradshaw wrote that he was unable to understand the reasons for the exercise of the respondent’s discretion since the appeal was successful. [14] It is worth noting that the contents of letters in the material to the Member of Parliament and to the respondent reflect an ongoing struggle by Mr Bradshaw against the briefing pattern of the respondent’s office in Cairns. It can also be inferred that Mr Bradshaw was aware of the respondent’s requirements. [15] The respondent is established under the Legal Aid Queensland Act 1997. The objects of the Act are to provide for giving legal assistance to financially disadvantaged persons in the most effective, efficient and economic way and to pursue innovative commercial arrangements including legal assistance arrangements for giving legal assistance at a reasonable cost to the community and on an equitable basis throughout the State, s 3. [16] The provision of legal assistance and how it may be granted is set out in Part 2. By s 9 a person may apply to Legal Aid or a Legal Aid agent for legal assistance. A Legal Aid agent is an entity with whom Legal Aid has entered into an agreement under s 46(4). As mentioned above, s 10 provides that “An application for legal assistance must be made in the approved form.” Legal assistance may only be given to an applicant for such assistance if that person meets specified criteria prescribed under regulation or notified in the Government Gazette. [17] The respondent published its Policy Manual on the internet from December 1997 and prior thereto members of the public could obtain a copy upon request or view a copy at an office of the respondent. That Manual sets out the structure of the respondent, identifies which matters may be granted legal assistance and explains the means test, merits test and guidelines which apply to the granting of legal assistance. The Grants Division of the respondent is responsible for the processing and assessing of applications for legal assistance and officers are employed to process and make decisions on applications for legal assistance. Applications for legal assistance may be refused by those officers in accordance with the -- 4 of 5 -- 5 requirements of the Legal Aid Queensland Act 1997 and the Policy Manual. Those reasons may relate to the income and assets test or a merits test. [18] Mr Bradshaw submitted that he ought to have a retrospective grant of aid because, in effect, he was successful in his advocacy for Mr McDonald insofar as the sentence was reduced on appeal and Mr McDonald would satisfy the means test. Mr Bradshaw submitted that elements of urgency prevented an application from being made. The facts are not strong as to the urgency but the fact is that no application was made at all and, indeed, although Mr Bradshaw said that a form had been given to Mr McDonald’s mother before Christmas 2006, there still has been no application made to the respondent. He proposes that this Court grant the application for review conditioned upon an application for legal aid being made to the respondent. [19] The answer to Mr Bradshaw’s application is plain. Without an application the respondent may not, by the terms of the legislation which governs it, consider a grant of aid except in the circumstances of an urgent application in respect of which there are very specific requirements which Mr Bradshaw did not meet or even attempt to meet. There is no basis therefore for challenging the decision of the respondent to refuse Mr Bradshaw’s request for retrospective aid. [20] There is a further matter, that is the extraordinary delay in prosecuting this application. An application for judicial review must be made within 28 days of an aggrieved person receiving the decision, s 26 of the Judicial Review Act 1991. The present decision would have been received by Mr Bradshaw at least prior to Christmas 2003. The application for an order of review was not filed until 25 August 2006. The court may grant an extension of time but the respondent submits that the court should not do so in these circumstances because of the delay and that the applicant is a barrister and should conform to legislative time limits. Mr Bradshaw submits that there is no prejudice to the respondent by the lateness of the application. He submits that he attempted to resolve the matter with the respondent by extra-curial means involving extensive correspondence with the local Member of Parliament and others. I would have been reluctant to extend time in those circumstances but have, in any event, considered the substantive application and since it must fail there is no point in granting an extension of time. [21] The orders are Dismiss the application -- 5 of 5 --